Aileen McHarg: Axa General Insurance Ltd v the Lord Advocate – Update

The insurance companies’ appeal against the Inner House of the Court of Session’s decision in Axa General Insurance Ltd v the Lord Advocate (discussed in a previous post) will be heard by a seven justice bench of the Supreme Court from 13 to 15 June 2011. The case will be heard alongside a reference by the Attorney General for Northern Ireland regarding the validity of the Damages (Asbestos-Related Conditions) Bill passed by the Northern Ireland Assembly on 21 March 2011. The Bill is in almost identical terms to the Damages (Asbestos-Related Conditions) (Scotland) Act 2009, the validity of which was upheld by the Inner House in Axa. The Attorney General’s reference is limited to clauses 3 and 4(2) of the Bill. The former provides that the period between the House of Lords’ decision that pleural plaques were not actionable and the coming into force of the legislation is to be ignored for the purpose of calculating limitation periods, while the latter provides that the Bill has retrospective effect. The Attorney General decided to refer the Bill prior to its receiving Royal Assent in order to pre-empt legal challenges and associated delays similar to those which had been experienced in Scotland. This is the first pre-enactment reference made in relation to any devolved legislation.